Opinion of the Court-Quarles, J., Dissenting of stock in question were growing and increasing in value, owing to the policy of the plaintiff bank in retaining its surplus annual earnings, instead of paying same out in dividends among its stockholders. There could be, under said circumstances, no great hurry for said sale, and at least no such indecent haste as would prevent the usual statutory notice required in this state in case of judicial sales of personal property. A receiver's sale is a judicial sale, and should be, and is required by law to be, made upon notice as other judicial sales are made. The plaintiff, to protect its own interests, and to realize as much as possible upon the debt owing to it by the insolvent banking corporation of C. Bunting & Co., commenced this action, and obtained the appointment of a receiver to take charge of the assets of said insolvent bank. It was entitled, both as a creditor and as the plaintiff, an actual party to the action, to notice. of every important step to be taken in the action which affected its rights or the assets of the insolvent banking corporation. There is evidence in the record showing that the cashier of the plaintiff bank made inquiries as to when said shares of stock would be sold, and that the receiver knew that he desired to know when said shares would be sold, yet no notice is given the plaintiff or its said cashier. It further appears that one of the officers and stockholders in said plaintiff bank, who apparently, from the evidence, is ambitious to control a majority of the stock of said banking corporation, was given notice by telephone by the receiver, and who was thereby enabled to, and did, buy in said stock through another banking concern. It is attempted to justify said sale upon the theory that purchaser bought on the same day, in an entirely different transaction, at pledgee's sale, one hundred and fifty other shares in the First National Bank of Pocatello (the plaintiff here), pledged by C. Bunting & Co. to the Omaha National Bank, and that the estate of C. Bunting & Co. has been benefited by that transaction. But the two transactions are entirely distinct. The one hundred and fifty shares held by the Omaha National Bank never were in custody of the district court, and never came to the hands of the receiver. Neither that sale nor those shares were connected with the sale complained of here. The order of sale did not Opinion of the Court-Quarles, J., Dissenting mention said one hundred and fifty shares of pledged stock. The report of sale did not mention them. The petition for the crder of sale did not mention them. The objections filed by the plaintiff to the confirmation of the sale did not mention them. The petition of the receiver for the order of sale, the order of sale, report of sale, and the plaintiff's written directions to the order of sale in fact constitute the pleadings in this proceeding, and make up the only issues to be tried by the court. But the court wandered outside these issues, and heard much irrelevant evidence, and the findings of fact are nearly all without the issues and irrelevant. The evidence that was admitted to show that the purchaser wanted the one hundred and fifty shares, with the fifty-five shares sold by the receiver, and his motives for wanting them, were irrelevant to the issues before the court in this proceeding. The only questions before the court were whether the sale had been properly ordered, and made for a fair price, and whether it should be confirmed. The evidence shows that, the order of sale having been made without notice either to the plaintiff or the defendant, and without at least five days' notice given as required by law, it should have been set aside, and a new sale, upon sufficient notice, ordered made. By voluntarily appearing and objecting to the confirmation of the sale, it may be said, the plaintiff waived notice of application for confirmation of the sale. Yet under no rule of practice nor upon any sound principle can it be urged, in my opinion, that the plaintiff by such appearance waived the giving of notice to it of the application for the order of sale in the first instance. The record shows that a resale will result in a higher price, that an advance of $345 over the price for which the purchaser bid it in is guaranteed, and that it will in all probability bring as much as $1,000 more than the amount for which it was formerly sold. Much of the irrelevant and incompetent evidence that was admitted by the lower court on the hearing of the application to confirm the sale in question shows an unseemly scramble between two of the stockholders and officers of the plaintiff corporation bank to obtain a majority of the stock therein, so as to control its business; that one of these officers and stockholders was favored Opinion of the Court-Quarles, J., Dissenting by the receiver, and was thereby enabled to purchase the fiftyfive shares of stock at a less price than he would have been able to do if he had not been so favored. Officers of the court should not be permitted to engage in such conduct. Judicial proceedings should be conducted with fairness to everybody. I cannot assent to a rule or decision which sanctions the sale of the assets, or any of them, by a receiver upon a private sale, or sale made publicly after three days' notice, in an action commenced by a creditor to wind up the affiairs of an insolvent corporation, without any notice to the plaintiff creditor or to the insolvent defendant of the application for the sale, or of the sale itself. If the law requires not less than five nor more than ten days' notice of such sale, as I think it does, less than five days' notice is no notice at all. This court held in Cummings v. Steele, 6 Idaho, 666, 59 Pac. 15, that an order appointing a receiver, made on ex parte application, without notice to the defendant, who had appeared in the action, was made without jurisdiction and void. The rule of practice there stated applies with full force here. Without notice to either plaintiff or defendant, or any one interested, an order is made directing the sale of over $6,000 of the assets of the insolvent corporation, the defendant in the action. That order, in my opinion, is coram non judice. And under that order a sale is made upon three days' notice posted in the town of Blackfoot, without actual knowledge having been brought home to the parties to the action, either plaintiff or defendant, and that sale is confirmed against the objections of the plaintiff, who objected upon the ground that no notice was given it, in the face of a showing that the property can be sold at an advanced price if a resale is ordered. I am compelled to dissent. The rule followed here simply authorizes courts into whose possession property of insolvent corporations may come to dispose of that property without the knowledge of either party to the suit or any party interested. It violates all established rules of procedure in this jurisdiction, by denying to parties in interest the right of hearing. That hearing to which they were entitled was upon the application for the order to sell. If that notice had been given in this case, the said shares of stock would have sold for more than Points decided. they did sell for, as parties who own stock in and are officers of the Pocatello National Bank desired to buy said stock, but were prevented by lack of notice from bidding at said sale. Said order confirming the sale should be reversed, and this proceeding remanded to the district court, with instructions to set aside the said sale, and to order a resale after first giving public notice of not less than five nor more than ten days. PETITION ON REHEARING. (February 8, 1901.) SULLIVAN, J.-After a careful examination of the petition for a rehearing in this matter, we find no reason why a rehearing should be granted, as the petition contains no points that were not fully considered on the hearing of this case. A rehearing is denied. Stockslager, J., concurs. QUARLES, J.-I gave to this case careful consideration in all of its phases upon the original hearing, and since the application for rehearing was made I have again carefully considered it, and am unable to come to any different conclusion from that announced in the dissenting opinion heretofore announced by me, for which reason I think that a rehearing should be granted herein. [December 14, 1900.] NUMBERS v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY. [63 Pac. 381.] APPEAL FROM JUSTICE COURT —UNDERTAKING ON APPEAL.-On appeal from a justice court to the district court, respondent excepted to the sufficiency of the sureties; within five days thereafter, appellant filed a new undertaking on appeal, in lieu of the original, executed by a surety company, but did not give the Argument for Appellant. respondent notice of the filing of said new undertaking, and failed to file with said new undertaking documentary evidence showing that the surety company had complied with the provisions of the act of February 23, 1899, authorizing such surety companies to execute such undertakings. Held, that such appeal to the district court was ineffectual, and was properly dismissed by the district court on motion. EXCEPTIONS FOR INSUFFICIENCY-BOND OF SURETY COMPANY-NoTICE. When an undertaking on appeal from a justice's judg ment to the district court is excepted to on the ground of insufficiency, the appellant may, in lieu of justification of sureties, file the undertaking of a surety company, but such undertaking must be accompanied with documentary evidence showing, prima facie, that such surety company has qualified to do business in Idaho, by complying with the requirements of the act of February 23, 1899, and that the execution of such undertaking has been authorized by the surety company, executed by agents or officers authorized to execute it and notice of filing such undertaking and evidence given to the respondent. (Syllabus by the court.) APPEAL from District Court, Washington County. It is only necessary to consider whether the bond is sufficient to perfect the appeal. The undertaking specifies that one of the purposes for which it was given is "payment of costs on appeal." For this purpose a bond of one hundred dollars is sufficient. (Ward v. Superior Court of Marin County, 58 Cal. 519.) The law specially authorizes the giving of new sureties in place of those excepted to. (Rev. Stats., sec. 4842.) In such cases. the usual practice is to file a new undertaking which, it is held, relates back to filing of original bond. (Cummins v. Scott, 23 Cal. 526; Fogel v. Schmalz, 83 Cal. 201, 23 Pac. 294.) The law does not require a surety company to justify before the justice's court. That the provisions of section 4842 of the Revised Statutes relating to justification have been modified by the provisions of the act regulating surety companies, page 337, Session Laws of 1899. In view of this law, what possible jurisdiction remained in the justice to determine the sufficiency of this surety upon a justification? It is the duty of the Secretary of State to pass upon that matter, and his conclusion is |